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Whether the refusal of access to records concerning representations made on the Legal Services Regulation Bill 2011 (the Bill) by the Department is justified under section 29(1) and section 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

On 13 February 2015 the applicant made an FOI request to the Department for certain records in relation to the Legal Services Regulation Bill 2011 (the Bill). In the course of correspondence, he narrowed the scope of the request to "letters/emails/communications/submissions etc sent to the Minister from 2014 - present from any interested party including, but not limited to, the Bar Council" (in respect of the Legal Services Bill).

By letter dated 11 March 2015, the Department refused access to the records on the basis that they were exempt from release under sections 29(1), 42(f) and 37(1) of the FOI Act. On 6 March 2015 the applicant applied for an internal review in respect of all of the records apart from those which were refused under section 42(f) of the FOI Act. By letter dated 2 April 2015, the Department issued its internal review decision, in which it affirmed its original decision, with an alteration in relation to a record already in the public domain. On 9 April 2015 the applicant applied to this Office for a review of the Department's decision.

In conducting this review I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; the views of the representative bodies and legal professionals who replied to this Office's invitation to make submissions; the content of the withheld records, provided to this Office by the Department for the purposes of this review; and to the provisions of the FOI Act. I use the term "representative bodies" to denote organisations which represent the interests of various sectors of the legal profession.

Scope of the Review

This review concerns the records which the applicant sought in his request for an internal review. The Department refused access to all of those records under section 29(1), with the exception of record 44, which it refused under section 37(1). Accordingly, the sole question for this review is whether the Department was justified in refusing access to those records under section 29(1) and section 37(1) of the FOI Act.

Preliminary Matters

I should explain that my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

It is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Department to satisfy me that its decision is justified.

Analysis and Findings

As noted above, the Department refused all but one of the records within the scope of this review under section 29 of the FOI Act. However, it is clear from an examination of the records that not all of them relate to the Department's deliberative process. I have therefore found it helpful to categorise them in the table set out below.

Section 15(1)(d) - information in the public domain

Category 1

Having examined records 14 and 36, I note that record 14 consists in part of statutory instruments and record 26 consists of a press release. Both of these are already in the public domain. I therefore find that the statutory instruments in record 14 and all of record 26 are exempt under section 15(1)(d) of the FOI Act, on the basis that they are already in the public domain.

Section 29 - deliberative process

As noted above, the Department relied on section 29 to refuse access to all but two of the records. Its decision stated that the Bill is subject to a deliberative process.

Section 29(1) of the FOI Act provides:

"A head may refuse to grant an FOI request -

(a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and

(b) the granting of the request would, in the opinion of the head, be contrary to the public interest,

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make".

The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. In order to avail of the section 29 exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, the section 29 exemption tends more strongly towards release of the records. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.

A deliberative process may be described as a process which involves the consideration of various matters with a view to making a decision on a particular issue. The exemption has two requirements:

(a) the record must contain matter relating to the deliberative process; and

(b) disclosure must be contrary to the public interest.

These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements have been met. Public bodies should not proceed on the basis that all records relating to deliberations are automatically exempt under section 29 of the FOI Act, without examining the content of each record and weighing up the public interest. In this regard, I must say that I find it surprising and disappointing that the Department does not appear to have done this. It is also regrettable that the decision-makers do not appear to have had regard to the Central Policy Unit of the Department of Public Expenditure and Reform's guidelines on public interest claims for section 29. These state that the public body "should set out a reasoned argument as to why they apply and what precisely the effect of disclosure would be".

Category 2

The records in Category 2 consist of correspondence between the representative bodies and the Department which refers to ongoing consultation on the Bill. They appear to relate more to the process of consultation than to the information to be deliberated upon by the Department. They do not contain matter to be taken into account with a view to making a decision e.g. opinions, advice, recommendations or information considered for the purpose of deliberations. Therefore, I do not believe that section 29(1)(a) applies to them. Accordingly, I am not required to consider the application of section 29(1)(b) to these records. I find that the Department's refusal of access to the records in Category 2 is not justified under section 29(1) of the FOI Act.

Category 3

The records in Category 3 consist of submissions to the Department about the Bill, which were made by representative bodies and members of the legal profession and the judiciary. In its original decision, the Department submitted that the records related to a deliberative process "which concerns the drafting of the Legal Services Regulation Bill currently at Report Stage in the Dáil which is scheduled to resume and to consider further amendments on 21 April 2015". I accept that the submissions would have been considered by the Department in its deliberations on the Bill and therefore contain matter relating to the deliberative process. Accordingly, I am satisfied that section 29(1)(a) applies to these records.

I am now required to consider section 29(1)(b). In doing so, I have had regard to submissions made by the applicant and the Department on the public interest.

In his request for an internal review, the applicant stated that the Bill "is clearly a matter of public importance and something that deserves public scrutiny. The records that have been identified in the schedule are largely from interested parties...and were written in a professional - rather than a personal - capacity...[release] would help inform public debate on this issue".

In its submissions to this Office, the Department stated that the public interest factors in favour of withholding the records included the following:

"- the premature release of records would impair the deliberative process with regard to the development of the legislation;
- the premature release of records would impair the integrity and viability of the decision making process with regard to the development of the legislation to a significant or substantial degree without countervailing benefit to the public;
- the ability of the professional bodies the subject of the legislation to communicate and set out their positions in confidence;
- the release of the records would impair a future decision and could contaminate the decision making process;
- the premature release of records would affect the negotiating position of other professional bodies;
- the release of these records while the deliberative process is still ongoing would set a precedent and would have a damaging effect on the future development of legislation and the effectiveness of the Civil Law Division of the Department...".

As noted above, section 22(12)(b) of the FOI Act places the onus on the public body to satisfy the Commissioner that a decision to refuse access to records was justified. In my view, the factors set out above are mere assertions, which are not supported by evidence. The Department has not shown precisely how the release of the records would harm the deliberative process in the various ways it claims it would. Therefore, it has not demonstrated to my satisfaction that it would be contrary to the public interest to release the records.

The Department cited the ability of the representative bodies to communicate their positions in confidence as a public interest argument against the release of the records. In the course of this review, an investigator in this Office notified the representative bodies that she proposed to recommend the release of their submissions and invited their views on this. Two bodies replied to say that they had no objection to the proposed release. The other bodies did not reply. There is therefore no evidence before me that the representative bodies expected to be able to communicate their positions on the Bill in confidence.

As noted above, my jurisdiction is to make a new decision in light of the facts and circumstances applying at the date of the review. It is possible that release of a particular record at a particular point in time would be contrary to the public interest, but that with the passage of time this would no longer be the case. As of the date of this decision, the Bill has already been passed by the Dáil and is due to go to the Seanad. I consider the advanced stage of the Bill's passage through the Houses of the Oireachtas to be a relevant factor which would favour release. I note that the Department's own submissions refer to the "premature" release of the records. In my view, this implicitly recognises that it may be appropriate to release the records at some stage. I do not consider that the release of the records at this stage would be premature. I take the view that if the purpose of the exemption was to protect matter relating to the deliberative process until it had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along those lines.

I consider a further factor in favour of release to be a principle upheld by the former Commissioner in Case 98058 (McAleer of the Sunday Times and the Department of Justice, Equality and Law Reform):

"As a general principle, I consider that it is in the public interest that views and representations which influence the legislative process should be open to public scrutiny especially where that process relates to an important and influential profession on whose behalf its representative body is providing the view or making the representations".

I find that this principle applies to the submissions by the representative bodies in this case. The Department did not acknowledge the McAleer decision in its submissions to this Office. That decision, although it dates back to the early days of FOI in Ireland, also involved the Department and consideration of the input of the legal profession into the legislative process. I further note that the Regulation of Lobbying Act 2015 recognises at section 5(8) that there is a public interest in there being an appropriate level of transparency in relation to lobbying and opening up lobbying to public scrutiny, which applies to representative bodies. I would go further and note that some government departments have a practice of publishing submissions received during consultations on legislation and would encourage all government departments to do so.

I consider that the principle of transparency identified in the McAleer decision also applies to the content of submissions on the Bill by members of the legal profession. In the course of this review, an investigator in this Office notified the legal professionals who made submissions on the Bill that she proposed to recommend the release of their names and submissions and invited their views on this. One legal professional replied to say that they had no objection to the proposed release (subject to the redaction of their personal contact details), while the others did not reply.

Finally, I am mindful that section 11(3) the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant to my assessment as to whether it would be contrary to the public interest to release the records in Category 3.

Set against these factors, there is no evidence before me that releasing the records in Category 3 would impair the deliberative process in relation to the Bill or that it would in any way be contrary to the public interest to release the records. I therefore find that the Department's refusal of access to the records in Category 3 is not justified under section 29(1) of the FOI Act.

Section 37 - personal information

The Department refused access to record 44 under section 37(1). Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 37(2) contains certain exceptions, which include if the person to whom the information relates consents to the disclosure of the information.

In the course of this review, an investigator in this Office notified the author of record 44 that she proposed to recommend the release of their name and submission and invited their views on this. The author of record 44 submitted that rather than being a submission on the Bill, the record was private and personal correspondence with the Minister and they enjoyed a right to privacy under the Constitution and Article 8 of the European Convention on Human Rights. I do not accept that correspondence about legislation which concerns the author's profession and is sent from the author's work address to the Minister of the sponsoring Department at his work address would, as a matter of course, constitute private and personal correspondence.

Nonetheless, what I am required to decide under the FOI Act is whether the record contains personal information within the meaning of section 2 of the FOI Act. If it does, I must decide whether section 37(1) applies to it and whether on balance, the public interest in granting the request outweighs the public interest in upholding the right to privacy of the individual concerned. I accept that there is a public interest in people being able to exercise their rights under the FOI Act. However, I must balance any such public interest against the public interest in protecting privacy rights. The FOI Act recognises this public interest both in the language of section 37 and in the long title to the FOI Act. The right to privacy has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution. Yet this right is not absolute and may be set aside where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy.

It appears from the submissions of the Department and the author of record 44 that the Department held record 44 on the understanding that it was to be treated as confidential. On that ground, it would fall within the definition of personal information under section 2 of the FOI Act. I note that the author did not consent to the disclosure of their personal information and I do not believe that any of the other grounds identified in section 37(2) of the FOI Act disapply section 37(1). For the reasons outlined in my findings under section 29 above, I believe that there is a public interest in disclosing the content of the submission on the Bill in record 44. However, on balance, I do not believe that it is in the public interest to disclose its author's identity.

Having regard to section 18(1) of the FOI Act, I consider that it would be practicable to release record 44 subject to the redaction of the author's name, the reference letters which appear after "My Ref" and the D.D.E. number. I note that the submission itself would not disclose its author's identity. I therefore find that the Department's refusal of access to record 44 is not justified under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department by affirming its decision in relation to the records in Category 1 under section 15(1)(d) and by annulling its decision in relation to the remaining records under section 29 and section 37 and directing the release of those records.

This is subject to the release of those records being made with the following redactions:

(a) the following records should be redacted to exclude any personal information such as the author's personal home address, mobile telephone number, email address and any other personal details (other than the person's name, which should be included): 32, 34, 42 (in the case of record 42, the entire cover letter should be excluded);

(b) record 44 should be redacted to exclude the author's name, the reference letters which appear after "My Ref", the D.D.E. number and the final two sentences, which fall outside the scope of the FOI request; and

(c) any other records which contain any personal and non-professional information about any other person (e.g. the mobile telephone number in record 1) should be redacted to exclude that personal information.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Peter Tyndall
Information Commissioner